Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board. Joseph M. Miller, James C. Cuneo and Frank M. Brass Commissioners. Keigo Obata, Workers’ Compensation Administrative Law Judge., WCAB No. FRE0240098.
Law Offices of Gary J. Hill and Gary J. Hill for Petitioner.
No appearance by Respondent Workers’ Compensation Appeals Board.
Hanna, Brophy, MacLean, McAleer & Jensen and Richard W. Krum for Respondent City of Fresno.
Before Ardaiz, P.J., Gomes, J., and Hill, J.
OPINION
Dianna Fain (Petitioner) asks this court to inquire into and determine the lawfulness of a decision of the Workers’ Compensation Appeals Board (WCAB) where the WCAB did not apply a peace officer statutory presumption of compensability and concluded her husband’s fatal cancer did not arise out of and occur in the course of his employment. (Lab. Code, § 3212.1.) Not finding sufficient basis upon which to invoke the presumption, we agree with the WCAB.
Further statutory references are to the Labor Code.
BACKGROUND
Bruce Fain (Fain) worked as a police officer for the City of Fresno (Fresno) from May 29, 1972, until August 17, 2006. On September 15, 2006, Fain completed an application for the WCAB to determine whether the “repeated stress and strain of employment and chemical exposure” while working as an officer since 1972 caused him to sustain a cancerous tumor in his head, hearing loss, and injury to his neck and spine. Fain subsequently passed away and his wife pursued his workers’ compensation claim.
A workers’ compensation administrative law judge (WCJ) conducted a hearing on April 2, 2008, to determine the existence of a causal connection between Fain’s cancer and his employment with Fresno. The parties disputed the applicability of a presumption of industrial injury regarding peace officers and cancer under section 3212.1 and mutually consented to use Gerald B. Levine, M.D., as an agreed medical examiner (AME). In addition to Dr. Levine’s reports, the hearing record included a December 8, 2006, deposition transcript of Fain and current testimony from Fresno fleet supervisor, Joseph Oldham, and firing range master, Leroy Ginther.
On May 14, 2008, the WCJ concluded the presumption of industrial injury had not been established, and that even if it had, Fresno successfully rebutted it. Denying reconsideration, the WCAB agreed with the WCJ’s report and recommendation.
DISCUSSION
Petitioner contends the WCAB should have applied the public safety officer cancer presumption of industrial injury under section 3212.1 to find that her husband’s tumor was industrially related, and therefore compensable, under the workers’ compensation system. This court’s review of a decision of the WCAB is limited. “Under section 5952, our function is not to hold a trial de novo or to exercise independent judgment, but to review the entire record to determine whether the Board’s conclusions are reasonable and supported by substantial evidence.” (Riverview Fire Protection Dist. v. Workers’ Comp. Appeals Bd. (1994) 23 Cal.App.4th 1120, 1124 (Riverview).)
“In the usual workers’ compensation case, before an employer can be held liable, the worker must show not only that the injury arose out of and in the course of employment (AOE-COE) but also that ‘… the injury is proximately caused by the employment....’ (§ 3600, subd. (a)(2) & (3).) Although workers’ compensation law must be ‘liberally construed’ in favor of the injured worker (§ 3202), the burden is normally on the worker to show proximate cause by a preponderance of the evidence. (§ 3202.5.) [¶] The Legislature eased this burden for certain public employees who provide vital and hazardous services by establishing a series of presumptions of industrial causation.” (Riverview, supra, 23 Cal.App.4th 1120, 1123-1124, fn. omitted; see § 3212 et seq.)
In Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418 (Gee), this court addressed the applicability of the now extinct treating physician’s presumption under former section 4062.9. We noted that “‘[a] presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action.’” (Gee, supra, at p. 1425, citing Evid. Code, § 600, subd. (a).) Thus, “‘a presumption becomes operative at trial when the basic facts giving rise to the presumption are established by the pleadings, by stipulation, by judicial notice, or by evidence.’” (Gee, supra, at p. 1425.)
Here, Petitioner never established the underlying basic facts necessary to invoke the section 3212.1 presumption. The presumption applies to certain firefighters and peace officers for up to 60 months after leaving employment and provides that an “injury” under the workers’ compensation laws “includes cancer … that develops or manifests itself during a period in which any member … demonstrates that he or she was exposed, while in the service of the department or unit, to a known carcinogen as defined by the International Agency for Research on Cancer, or as defined by the director.” (§ 3212.1, subd. (b), emphasis added.) In addition to demonstrating exposure to a known carcinogen, the original version of the legislation, enacted during the 1981-1982 legislative session “imposed upon the employee the burden of demonstrating … that the carcinogen was reasonably linked to the disabling cancer.” (City of Long Beach v. Workers’ Comp. Appeals Bd. (2005) 126 Cal.App.4th 298, 312 (Long Beach).) In 1999, the Legislature amended the presumption and removed the reasonable link requirement. (Stats. 1999, ch. 595.) Section 3212.1, subdivision (d), now adds in relevant part:
“The cancer so developing or manifesting itself in these cases shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by evidence that the primary site of the cancer has been established and that the carcinogen to which the member has demonstrated exposure is not reasonably linked to the disabling cancer. Unless so controverted, the appeals board is bound to find in accordance with the presumption.” (§ 3212.1, subd. (d).)
In an en banc decision, the WCAB examined the changes to section 3212.1 and summarized:
“The 1999 amendment requires that the applicant establish that he or she is a firefighter or peace officer who falls within the ambit of section 3212.1(a). The applicant must further demonstrate exposure to a known carcinogen as defined in published standards and that the cancer has developed or manifested itself during the period when the applicant was in active service or for a specified period, not to exceed 60 months from the last day of work in the specified capacity, if the applicant’s service has terminated. (Lab. Code, § 3212.1(b)&(d).) Therefore, the applicant is no longer required to establish a reasonable link between the exposure and the cancer.
“Accordingly, the presumption of compensability arises and the burden shifts to the defendant when the applicant has made this showing. The defendant may rebut the presumption (1) by evidence that the primary site of the cancer has been established and (2) by evidence that exposure to the recognized carcinogen is not reasonably linked to the disabling cancer.” (Faust v. San Diego (2003) 68 Cal.Comp.Cases 1822, 1830.)
In addition to demonstrating Fain was a qualified peace officer and that he developed cancer within 60 months of leaving his employment -- neither of which are disputed here -- Petitioner was required to prove her husband was exposed to a known carcinogen defined in applicable standards while working for Fresno before the WCAB could even consider the statutory presumption. “To invoke the presumption, the employee must demonstrate, by a preponderance of the evidence, that he or she was exposed, while in the service of the employer, to a known carcinogen.” (Long Beach, supra, 126 Cal.App.4th at p. 314.)
Adopting the WCJ’s findings, the WCAB did not find any evidence Fain was ever exposed to a known carcinogen while working for Fresno as a police officer. In an April 6, 2007, AME report, Dr. Levine explained that Fain “developed a malignant glioblastoma (glioma), which is a primary malignant brain tumor.” He reviewed Fain’s job description and material safety data sheets describing the safety levels of various chemicals -- none of which were necessarily present during Fain’s employment. Dr. Levine specifically referenced the section 3212.1 presumptions for firefighters and peace officers and then explained:
“I have approached the issue of causation from several vantage points. The first question is whether certain occupations have a higher incidence of glioma and whether any specific carcinogens have been incriminated.
“The second question is what do epidemiologic studies on police officers/firefighters tell us about the incident of malignancy and finally how does one assess all of the above data from an evidence-based standpoint.
“We do know that firefighters may be exposed to a variety of potential carcinogens including [various compounds]….
“By virtue of the type of duties described it is reasonable to assume that during the course of his occupation, Detective Fain had toxic exposures.
“OSHA defines a carcinogen as ‘any substance that has validly been shown to produce tumors, either benign or malignant, in animals or which decreases the latent period between exposure and development of such tumors.’”
Dr. Levine continued by discussing several case studies, which did not find any significant correlation between brain tumors and occupation. According to Dr. Levine’s review, “The literature does not provide clear-cut evidence that police officers or firefighters are at a greater risk to develop brain tumours [sic].” Dr. Levine concluded, “In assessing all of the above from a scientific standpoint I am unable to identify a specific carcinogen, which would have caused the patient’s glioma.” Although Dr. Levine assumed Fain may have been exposed to toxic chemicals, he did not find any evidence that he was ever exposed to any known carcinogen.
The testimony presented at trial also does not reasonably support the proposition that Fain was exposed to known carcinogens. Joseph Oldham, Fresno’s fleet acquisition supervisor familiar with the city’s vehicle yard, only discussed vehicle vapors related to fueling dispensers, but never described with any specificity what agents the vapors potentially released or whether he even knew if Fain had ever been exposed to such vapors. Leroy Ginther, Fresno’s range master, described that he and Fain used unknown weapon solvents made available by Fresno that were “kind of like kerosene.” Ginther added that “[t]hey would not use gasoline as a solvent because gasoline was toxic and volatile.” Ginther also recalled the firing range used “Hoppe’s Powder Cleaner,” but had no knowledge of it being a carcinogen. Although such chemicals may have been toxic, Petitioner did not present evidence that any vehicle fuels or weapon solvents to which Fain may have been exposed were actually carcinogens.
Considering the evidence presented at trial, Petitioner failed to demonstrate that her husband was exposed to any known carcinogens during his employment with Fresno. Accordingly, Petitioner never met the threshold requirements of establishing the applicability of the section 3212.1 presumption. Moreover, there is no medical evidence otherwise suggesting a causal relationship between Fain’s employment and his brain tumor. Accordingly, the WCAB’s finding that Fain’s cancer tumor did not arise out of and in the course of his employment is both reasonable and supported by substantial evidence.
DISPOSITION
The petition for writ of review is denied. This decision is final forthwith as to this court.